Board En Banc decision on declared state of emergency on spread of corona virus

This is a Board En Banc panel decision

This is a very significant case for workers’ compensation principles.

Normally this newsletter is dedicated to providing cases related to the litigation of workers’ compensation. The world has changed and the existing order of all things has changed dramatically.

Most of the readers are now working remotely and the whole business procedure has changed.

The way we operate in Workers compensation has dramatically changed as well. The Workers’ Compensation Appeals Board issued on En Banc decision on March 18, 2020 temporarily suspending specific rules of Practice an Procedure. The decision applies to the entire state.

Dismissal of an application or lien claim for failure to appear is suspended. Workers’ Compensation Judges (WCJ) and arbitrators shall have an unlimited extension of time to issue reports in response to petition for reconsideration or removal. You no longer need two witnesses on a Compromise and Release. Signatures may be done electronically.

Suspension of requirement of service by mail on the WCAB. Service may be electronic with or without parties’ consent.

District offices are closed for filing until April 3, 2020. All filings are extended to the next day when the district offices reopen for filing. You will need to monitor when the district offices reopen. It may well be extended past April 3, 2020.

Be safe!


Board panel rescinds Workers’ Compensation Judge (WCJ) decision finding separate and distinct injuries

This is a Board panel decision

This is a very significant case for workers’ compensation principles.

The applicant worked for the employer for more than 30 years. He filed a cumulative trauma for orthopedic, hearing loss and cardiovascular injuries. The defendant accepted the hearing loss and heart injuries and denied the rest.

The case went to trial and the Workers’ Compensation Judge (WCJ) found injury to the orthopedics, hearing loss and heart. The parties stipulated at a later hearing to 64 per cent permanent disability for the cardiovascular injury and 45 per cent permanent disability for the orthopedic injuries. The WCJ ruled that the internal and orthopedic injuries were separate and issued two separate permanent disability awards. The WCJ reasoned that the cardiovascular injury was unrelated to physical work while the orthopedic was related to physical work. This justified separate permanent disability awards.

The applicant petitioned for reconsideration. The applicant contended there
was a prior decision that there was a determination of only one cumulative
trauma period. The applicant contended you only get a single combined award for orthopedic and cardiovascular injuries.

The Workers’ Compensation Appeals Board (WCAB) found there was only one cumulative trauma and the applicant was entitled to a combined award which would result in a life pension. Since there was a previous determination of the cumulative trauma period this could not be relitigated.


Applicant cannot receive temporary disability for time lost for treatment medical appointments after return to work

This is an appellate court decision

This is a very significant case for workers’ compensation principles.

The applicant had two specific injuries. The applicant was found permanent and stationary for one injury but not the other. The applicant returned work.

The applicant then missed time from work for medical treatment appointments and for appointments with the Qualified Medical Examiner. The applicant used sick time and vacation time for the appointments.

At a hearing the applicant claimed she was entitled to temporary disability (td) payments for the time missed from work. The Workers’ Compensation Judge (WCJ) ruled under section 4600 (e)(1) that that the applicant was not entitled to td for an appointment for medical treatment. The WCJ did not rule on the QME time lost.

The applicant filed for reconsideration. The WCJ on the report and recommendation again indicated the applicant is not allowed td for medical treatment but indicated the applicant can get one day of td for the QME exam. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ. The appellate court reviewed Department of Rehabilitation v WCAB and determined the applicant is not entitled to temporary disability indemnity for missed time from work to attend appointments for medical treatment. The applicant is entitled to td for the missed time for a medical examination as opposed to treatment.

Case:Skelton v WCAB


Workers’ Compensation Appeals Board rules applicant is permanently and totally disabled

This is a writ denied case

This is a very significant case for workers’ compensation principles.

The applicant sustained an injury to her neck, lower back, right shoulder, psyche and headaches in 2007. The applicant was originally  awarded a 57 per cent permanent disability. The Workers’ Compensation Appeals Board (WCAB) rescinded the award on petition for reconsideration and returned the case to the trial level to develop the record pursuant to Oglivie. They wanted the record developed with vocational evidence of the applicant’s future earning capacity.

The parties agreed on a vocational expert. The vocational expert determined the applicant lost all earning capacity. The psychiatric Qualified Medical Examiner determined the applicant was unable to return to the open labor market based on a Global Assessment of Function test (GAF).

The Workers’ Compensation Judge (WCJ) determined the applicant had a 89% disability using the GAF in psychiatry. The WCJ combined this with a 27 % orthopedic disability and came up with an overall rating of 92% according to the AMA guides. However, based on vocational expert evidence there was substantial evidence to award the applicant 100 per cent, which the WCJ did.

The defendant filed a petition for reconsideration and the WCAB agreed with the WCJ. There was substantial evidence by the psychiatrist and vocational expert to award 100 per cent disability.

Case: International Capital Group v WCAB (Walter)


Apportionment not granted when disability between two injuries cannot be separated

This is a writ denied case

This is a very significant case for workers’ compensation principles.

The applicant had an admitted orthopedic, internal and psychiatric specific injury on 10/15/2002. The applicant also alleged a cumulative trauma from 10/15/2002 to 1/2/2003.

The applicant saw an Agreed Medical Examiners (AME) in orthopedics, internal medicine and psychiatry. All three provided opinions on apportionment between injuries.

At trial the Workers’ Compensation Judge (WCJ) awarded the applicant 39 percent permanent disability for the specific and 68 percent permanent disability for the cumulative trauma after apportionment between the injuries.

The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) granted reconsideration and submitted new rating instructions to the rater. The rater came up with a combined rating of 83 percent for the specific and the cumulative trauma. The WCAB rescinded the award and issued a joint award for 83 percent.

The WCAB reviewed Labor Code section 4663 and Benson v. WCAB. They determined apportionment must be based on causation, except when the contribution of separate injuries cannot be parceled out by an evaluating physician. Here the disability was inextricably intertwined. Therefore, a combined PD award issued of 83 percent.


100 percent finding of permanent disability under Labor Code Section 4662 (b) overturned

This is a published court decision

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to his heart and psyche while employed as a correctional officer. The applicant received a 97 percent permanent disability rating for his heart. The rating for the psychiatric component was 71 percent. Combining the two ratings resulted in a 99 percent disability.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant 100 percent (permanent and total) disabled in accordance with Labor Code section 4662 (b). The WCJ did not mention or discuss the combined rating of 99 percent using the 2005 schedule of rating permanent disability.

The defendant filed a Petition for Reconsideration alleging the applicant was 99 percent disabled. The Workers’ Compensation Appeals Board (WCAB) reviewed Labor Code section 4660 and 4662 (b) and agreed with the WCJ that the applicant was 100 percent.

On review the Court of Appeal reviewed section 4660 and 4662. They also reviewed numerous cases. They reviewed Ogilvie, LeBoeuf, Jaramillo, among others. They concluded there was no basis for concluding section 4662 (b) provided a path to permanent disability. They indicated section 4660 is mandatory. The 2005 schedule is prima facie evidence of disability. In this case 99 percent. The case was remanded to the WCAB for further action.


Court of Appeal indicates that temporary disability may not be paid more than five years after date of injury

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant suffered an injury to his right shoulder on July 31, 2010. He received a 12 percent permanent disability in 2011. He filed a petition to reopen in 2015.

On September 15, 2015 he applied for section 4850 benefits and temporary disability. This was more than 5 years from the date of injury. The employer contended he was not entitled to benefits under labor code section 4656, subdivision (c)(2).

The matter went to trial and a workers’ compensation judge (WCJ) ruled the applicant was entitled to befits beyond five years. The employer filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) in a split decision ruled the applicant was entitled to benefits beyond five years.

The appellate court reviewed section 4656. They also reviewed Radesky v. City of Los Angeles. They then reviewed Sarabi v. WCAB. Finally, they reviewed Nickelsberg v WCAB. They also reviewed the liberal construction doctrine of Labor Code section 3202.

The court of appeal indicated that section 4656, subdivision (c) (2) clearly and unambiguously provides that temporary disability shall not exceed 104 weeks form the date of injury. The relevant statutory language provides all temporary disability payments must be made within 5 years from the date of injury.


Workers’ Compensation Appeals Board must state the evidence relied on and the reasons for its decision

This is a published decision of the court of appeal

This is a very significant case for workers’ compensation principles.

The applicant suffered a psychiatric injury. The Qualified Medical Examiner (QME) found the injury did not cause any permanent disability. The QME indicated he could not determine temporary disability. However, he indicated she could return to work with a reasonable accommodation. The employer refused to accommodate her work restriction.

The Workers’ Compensation Judge (WCJ) found no permanent disability and that the applicant failed to prove any period of temporary disability.

The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the applicant’s petition for reconsideration. The applicant filed a writ with the court of appeal. The WCAB wrote a letter brief to the court of appeal indicating it made an error in the case and asked that its opinion be annulled and remanded.

The court of appeal recognized that the WCAB admitted that it did not review all available legal theories to the applicant. If the employer denied modified work then the applicant might be temporarily disabled.

Therefore, the original decision did not state the evidence relied on and the reasons for its decision. The WCAB did not review in sufficient detail refusal to provide modified worker so the case is remanded.


Court of Appeal rules there is no apportionment for disability resulting from medical treatment

This is a published decision of the court of appeal

This is a very significant case for workers’ compensation principles.

The applicant did many years of clerical work for Costco. The applicant took a leave to undergo carpal tunnel surgery. She filed a claim and this was an admitted injury. Following surgery, she developed chronic regional pain syndrome (CRPS).

The Agreed Medical Examiner (AME) found the applicant permanent and totally disabled. He apportioned 90% industrial and 10% nonindustrial.

The Workers’ Compensation Judge (WCJ) awarded the applicant 90% permanent disability. The applicant filed for reconsideration. The Workers’ Compensation Appeals Board after a remand increased disability but still allowed apportionment. A writ was filed.

The court of appeal dealt with timeliness of appeal and allowed the appeal. The court reviewed sections 4663 and 4664. The court indicated that the issue is whether an employer is liable for both the medical treatment and any disability arising directly from an unsuccessful medical treatment, without apportionment. They reviewed the statutes and Granado and Dueville. Here there was no dispute that the applicant had disabling carpal tunnel. The surgery went badly resulting in CRPS.

They indicated that the employer is thus responsible for the treatment with no apportionment. HB


Penalty payment under section 5814 awarded for unreasonable delay or denial of advance of disability pension payment

This is a published case

This is a very significant case for workers’ compensation principles.

The applicant was a deputy sheriff who had a job related injury and applied for industrial disability retirement. The applicant also requested an advance on her disability pension payment while her application was being processed.

She applied for the benefit on March 6 and the county claimed they did not receive notice for benefits under labor code section 4850.4 until June 11. The applicant claimed there was an unreasonable delay and requested penalties under labor code section 5814 from the Workers’ Compensation Board (WCAB).

The case went to trial. The County contended they objected to the request for benefits and that the WCAB had no jurisdiction for making payments on the disability pension amounts.

The Workers’ Compensation Judge (WCJ) found that section 5814 did apply to an unreasonable delay of advancement of disability pension amounts. The county petitioned for removal.

The WCAB reversed the WCJ because it believed the advancement of disability retirement payments were not equivalent to workers compensation benefits. The applicant filed a writ.

The court of appeal reviewed labor code sections 4850 and specifically labor code section 4850.4. They reviewed numerous cases and determined that a section 5814 may be appropriate and remanded the case.


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